Opinion
April 17, 1969.
June 13, 1969.
Practice — Trial before a judge without jury — Absence of findings of fact or conclusions of law — Appellate review — Weight of testimony — Grant of new trial rather than remand — General new trial.
1. Where a case is tried before a judge without a jury, and the trial judge makes no specific findings of fact or conclusions of law but merely renders a decision, it is the responsibility of the appellate court on appeal to review the entire record and attempt to make its own determination of the facts and draw its own conclusions of law based thereon.
2. In this case, in which it appeared that plaintiff, with engineering experience and business contacts, entered into an oral contract with defendant, a construction company, to procure construction contracts for defendant and to supervise the work; that the terms of the oral contract were not clear; that later plaintiff and defendant's president each signed an undated paper, which contained statements relating to plaintiff's monthly salary, his expenses, company overhead, job selling price, and a percentage of job profit for plaintiff; that plaintiff contended that the memorandum evidenced their oral agreement, and defendant contended that it related to another venture engaged in by the parties; and that the court below (which made no specific findings of fact or conclusions of law) accepted defendant's theory and awarded plaintiff only his salary and unreimbursed expenditures made by plaintiff to the time of his discharge; it was Held that the weight of the testimony favored plaintiff, rendering the judgment in his favor grossly inadequate; this required a new trial rather than a remand for the court below to make findings of fact and conclusions of law.
3. It was Held, in the circumstances, that the new trial should be a general one, encompassing all issues, including the contested counterclaim asserted by the defendant, which was not disposed of by the lower court.
WRIGHT, P.J., would affirm the judgment below.
Argued April 17, 1969.
Before WRIGHT, P.J., WATKINS, MONTGOMERY, JACOBS, HOFFMAN, SPAULDING, and CERCONE, JJ.
Appeal, No. 71, April T., 1969, from judgment of Court of Common Pleas of Washington County, Sept. T., 1963, No. 168, in case of M.W. Smith v. Peacock Construction Company. Judgment reversed and new trial awarded.
Assumpsit. Before SWEET, P.J., without a jury.
Finding for plaintiff and judgment entered thereon. Plaintiff appealed.
Robert L. Ceisler, with him Patrono, Ceisler Edwards, for appellant.
William C. Porter, for appellee.
Appellant initiated this action by issuing a writ of foreign attachment based on a claim in assumpsit against appellee, Peacock Construction Company, a foreign business corporation, incorporated under the laws of the State of Georgia. Appellant originally claimed $37,709.60 with interest, but by an amendment to his complaint this was raised to $44,421.09. Appellee denied the claim and asserted a counterclaim of approximately $15,000. The case was tried before Hon. CHARLES G. SWEET, President Judge, without a jury, and a decision was rendered in appellant's favor for $1,846.81 with interest. Appellant's motion for a new trial having been dismissed after argument before a court en banc, and judgment having been entered on the decision, he appealed.
Since the lower court made no specific findings of fact or conclusions of law but merely rendered a decision, it now becomes our responsibility on this appeal to review the entire record and attempt to make our own determination of the facts and draw our own conclusions of law based thereon. Yoo Hoo Bottling Company of Pennsylvania, Inc. v. Leibowitz, 432 Pa. 117, 247 A.2d 469 (1968); Idell v. Falcone, 427 Pa. 472, 235 A.2d 394 (1967); Ballinger v. Howell Manufacturing Company, 407 Pa. 319, 180 A.2d 555 (1962).
In the absence of a request for findings of fact and conclusions of law, the trial judge was not bound to file them. See Act of April 22, 1874, P.L. 109, § 2, as amended, 12 Pa.C.S.A. § 689. However, an opinion by the court en banc, had one been filed, would have been helpful to us.
Our careful review of this record indicates clarity in the basic facts. Plaintiff, with engineering experience and business contacts, entered into an oral contract with the defendant corporation, a construction company, acting through Cassius Peacock, its president, general manager, and 99 per cent stockholder, in June, 1962, to procure construction contracts for the defendant and to supervise the work. The terms of this oral contract are not clear. However, later, in July, 1962, plaintiff and Cassius Peacock each signed an undated paper bearing the heading, "FORT MYERS-NAPLES-PUNTA GORDA READY MIXED CONCRETE, INC.", on which Mr. Peacock had written the following:
"1. Salary $800.00/month is general company overhead
"2. Smith's expenses are job cost
"3. Company overhead charged to jobs is agreed at 4 1/2% of job cost
"4. Job selling price, less job cost plus 4 1/2% overhead on job cost, is job profit.
"5. Smith gets 30% of job profit."
Neither Mr. Peacock nor either of the parties had any interest in the firm whose name appeared as the heading on the paper. It was a sheet from a scratch pad Mr. Peacock had on his desk in Fort Myers, Florida, at the time the paper was written.
Following the oral agreement plaintiff extended efforts to secure building contracts for the defendant and secured a $500,000 contract with the Continental Can Company for the construction of a building in Zanesville, Ohio, as a warehouse for its Hazel Atlas branch, and another contract with the same company for another building in Washington, Pennsylvania, for a contract price of $70,000. Both buildings were constructed by defendant with plaintiff supervising the construction; and defendant received payment of the price of both contracts. During the period that plaintiff was working in defendant's interests he was held out as a vice president, given various credit cards enabling him to secure credit against defendant's accounts; he expended money on behalf of defendant for which he was reimbursed; he was paid salary in the sum of $800 per month until August, 1963; and he was given a check for $10,000 on a voucher marked, "Amount due as of 12/31/62 — Hazel Atlas Warehouse Zanesville, Ohio." Plaintiff was discharged by defendant in September, 1963.
The basic issue in this case relates to the meaning of the writing set forth above. Plaintiff contends it is a memorandum evidencing the oral agreement of June, 1962. Defendant contends it is related to another venture engaged in by the parties to construct buildings on land owned by other parties on a leaseback arrangement in which they would secure 100 per cent financing without contributing any of their own money. After such a deal was completed, they would then divide the profit. The lower court accepted this theory and awarded plaintiff only his salary of $800 for the month of September, 1963, and unreimbursed expenditures made by plaintiff on behalf of defendant to the time of his discharge. Our appraisal of the testimony leads us to a contrary conclusion.
Under defendant's theory no money was due plaintiff as of 12/31/62 when he received $10,000 from defendant. Mr. Peacock attempts to explain this by saying that this was merely a bonus to retain plaintiff as an employe. However, the voucher shows it was for money due on the Hazel Atlas job, which was near completion at that time. Furthermore, it was charged to that job for tax purposes. It is, therefore, in our opinion, incredible to believe that it was a voluntary gift as a bonus. On the contrary, it supports plaintiff's theory of his claim.
The overall atmosphere of the case also impresses us as supporting plaintiff's contention. It seems to us that it would be improbable for these parties to have engaged in the second venture described by Mr. Peacock so soon after their first agreement and before fruition of their efforts under it.
We shall not attempt to act as a trial court and resolve the complicated financial disagreement between these parties on the claim and counterclaim except to hold that the weight of the testimony favors plaintiff, rendering the judgment in his favor grossly inadequate. This requires a new trial rather than a remand for the purpose of having the lower court make findings of facts and conclusions of law, which we would generally do in such cases. However, due to the conflicting testimony of the parties and the confusion created by the excessive amount of unnecessary testimony relating to plaintiff's educational background, which was admitted merely to reflect on his credibility, we shall order the new trial to be a general one, encompassing all issues, including the contested counterclaim asserted by the defendant, which was not disposed of by the lower court.
Judgment reversed and a new trial awarded.
WRIGHT, P.J., would affirm the judgment below.